These standards of mediation
practice were jointly defined by the American Bar Association (ABA),
Association for Conflict Resolution (ACR) & the American Arbitration
Association (AAA) & are generally applicable to the mediation of legal
disputes.
Preface
The model standards of conduct for mediators are intended to perform three major functions:
- to serve as a guide for the conduct of mediators;
- to inform the mediating parties;
- to promote public confidence in mediation as a process for resolving disputes.
The standards draw on existing codes of conduct for mediators & take into
account issues & problems that have surfaced in mediation practice. They are
offered in the hope that they will serve an educational function & provide
assistance to individuals, organizations & institutions involved in
mediation.
I. Self-Determination:
A mediator shall recognize that mediation is based on the principle of
self-determination by the parties.
Self-determination is the fundamental principle of mediation. It requires
that the mediation process rely upon the ability of the parties to reach a
voluntary, uncoerced agreement. Any party may withdraw from mediation at any
time.
Comments:
The mediator may provide information about the process, raise issues & help
parties explore options. The primary role of the mediator is to facilitate a
voluntary resolution of a dispute. Parties shall be given the opportunity to
consider all proposed options.
A mediator cannot personally ensure that
each party has made a fully informed choice to reach a particular agreement,
but is a good practice for the mediator to make the parties aware of the
importance of consulting other professionals, where appropriate, to help
them make informed decisions.
II. Impartiality:
A mediator shall conduct the mediation in an impartial manner.
The
concept of mediator impartiality is central to the mediation process. A
mediator shall mediate only those matters in which she or he can remain
impartial & evenhanded. If at any time the mediator is unable to conduct the
process in an impartial manner, the mediator is obligated to withdraw.
Comments:
A mediator shall avoid conduct that gives the appearance of partiality
toward one of the parties. The quality of the mediation process is enhanced
when the parties have confidence in the impartiality of the mediator.
When mediators are appointed by a court or institution, the appointing
agency shall make reasonable efforts to ensure that mediators serve
impartially.
A mediator should guard against partiality or prejudice based on the
parties' personal characteristics, background or performance at the
mediation.
III. Conflicts of Interest:
A mediator shall disclose all actual & potential conflicts of interest
reasonably known to the mediator.
After disclosure, the mediator shall decline to mediate unless all Parties
choose to retain the mediator. The need to protect against conflicts of
interest also governs conduct that occurs during & after the mediation. A
conflict of interest is a dealing or relationship that might create an
impression of possible bias. The basic approach to questions of conflict of
interest is consistent with the concept of self-determination. The mediator
has a responsibility to disclose all actual & potential conflicts that are
reasonably known to the mediator & could reasonably be seen as raising a
question about impartiality. If all parties agree to mediate after being
informed of conflicts, the mediator may proceed with the mediation. If,
however, the conflict of interest casts serious doubt on the integrity of
the process, the mediator shall decline to proceed.
A mediator must avoid the appearance of conflict of
interest both during & after the mediation. Without the consent of all
parties, a mediator shall not subsequently establish a professional
relationship with one of the parties in a related matter, or in an unrelated
matter under circumstances which would raise legitimate questions about the
integrity of the mediation process.
Comments:
:
A mediator shall avoid conflicts of interest in recommending the services of
other professionals. A mediator may make reference to professional referral
services or associations which maintain rosters of qualified professionals.
Potential conflicts of interest may arise between administrators of
mediation programs & mediators & there may be strong pressures on the
mediator to settle a particular case or cases. The mediator's commitment
must be to the parties & the process. Pressure from outside of the
mediation process should never influence the mediator to coerce parties to
settle.
IV. Competence:
A mediator shall mediate only when the mediator has the
necessary qualifications to satisfy the reasonable expectations of the
parties.
Any person may be selected as a mediator, provided that the parties are
satisfied with the mediator's qualifications. Training & experience in
mediation, however, are often necessary for effective mediation. A person
who offers herself or himself as available to serve as a mediator gives
parties & the public the expectation that she or he has the competency to
mediate effectively. In court-connected or other forms of mandated
mediation, it is essential that mediators assigned to the parties have the
requisite training & experience.
Comments:
Mediators should have information available for the parties regarding their
relevant training, education & experience.
The requirements for appearing on the list of mediators must be made public
& available to interested persons.
When mediators are appointed by a court or institution, the appointing
agency shall make reasonable efforts to ensure that each mediator is
qualified for the particular mediation.
V. Confidentiality:
A mediator shall maintain the reasonable expectations of the parties with
regard to confidentiality.
The reasonable expectations of the parties with regard to confidentiality
shall be met by the mediator. The parties' expectations of confidentiality
depend on the circumstances of the mediation & any agreements they may make.
The mediator shall not disclose any matter that a party expects to be
confidential unless given permission by all parties or unless required by
law or other public policy.
Comments:
The parties may make their own rules with respect to confidentiality, or
other accepted practice of an individual mediator or institution may dictate
a particular set of expectations. Since the parties' expectations regarding
confidentiality are important, the mediator should discuss these
expectations with the parties.
If the mediator holds private sessions with a party, the nature of these
sessions with regard to confidentiality should be discussed prior to
undertaking such sessions.
In order to protect the integrity of the mediation, a mediator should avoid
communicating information about how the parties acted in the mediation
process, the merits of the case, or settlement offers. The mediator may
report, if required, whether parties appeared at a scheduled mediation.
Where the parties have agreed that all or a portion of the information
disclosed during a mediation is confidential, the parties' agreement should
be respected by the mediator.
Confidentiality should not be construed to limit or prohibit the effective
monitoring, research, or evaluation of mediation programs by responsible
persons. Under appropriate circumstances, researchers may be permitted to
obtain access to the statistical data &, with the permission of the
parties, to individual case files, observations of live mediations &
interviews with participants.
VI. Quality of the Process:
A mediator shall conduct the mediation fairly, diligently & in a manner consistent with the
principle of self-determination by the parties.
A mediator shall work to ensure a quality process & to encourage mutual
respect among the parties. A quality process requires a commitment by the
mediator to diligence & procedural fairness. There should be adequate
opportunity for each party in the mediation to participate in the
discussions. The parties decide when & under what conditions they will
reach an agreement or terminate a mediation.
Comments:
A mediator may agree to mediate only when he or she is prepared to commit
the attention essential to an effective mediation.
Mediators should only accept cases when they can satisfy the reasonable
expectations of the parties concerning the timing of the process. A mediator
should not allow a mediation to be unduly delayed by the parties or their
representatives.
The presence or absence of persons at a mediation depends on the agreement
of the parties & the mediator. The parties & mediator may agree that
others may be excluded from particular sessions or from the entire mediation
process.
The primary purpose of a mediator is to facilitate the parties' voluntary
agreement. This role differs substantially from other professional-client
relationships. Mixing the role of a mediator & the role of a professional
advising a client is problematic & mediators must strive to distinguish
between the roles. A mediator should, therefore, refrain from providing
professional advice. Where appropriate, a mediator should recommend that
parties seek outside professional advice, or consider resolving their
dispute thr color="#191970"ough arbitration, counseling, neutral evaluation, or other
processes. A mediator who undertakes, at the request of the parties, an
additional dispute resolution role in the same matter assumes increased
responsibilities & obligations that may be governed by the standards of
other processes.
A mediator shall withdraw from a mediation when incapable of serving or when
unable to remain impartial.
A mediator shall withdraw from a mediation or postpone a session if the
mediation is being used to further illegal conduct, or if a party is unable
to participate due to drug, alcohol, or other physical or mental incapacity.
Mediators should not permit their behavior in the mediation process to be
guided by a desire for a high settlement rate.
VII. Advertising & Solicitation:
A mediator shall be truthful in advertising & solicitation for
mediation.
Advertising or any other communication with the public concerning services
offered or regarding the education, training & expertise of the mediator
shall be truthful. Mediators shall refrain from promises & guarantees of
results.
Comments:
It is imperative that communication with the public educate & instill
confidence in the process.
In an advertisement or other communication to the public, a mediator may
make reference to meeting state, national, or private organization
qualifications only if the entity referred to has a procedure for qualifying
mediators & the mediator has been duly granted the requisite status.
VIII. Fees:
A mediator shall fully disclose & explain the basis of
compensation, fees & charges to the parties.
The parties should be provided sufficient information about fees at the
outset of a mediation to determine if they wish to retain the services of a
mediator. If a mediator charges fees, the fees shall be reasonable,
considering among other things, the mediation service, the type &
complexity of the matter, the expertise of the mediator, the time required,
& the rates customary in the community. The better practice in reaching an
understanding about fees is to set down the arrangements in a written
agreement.
Comments:
A mediator who withdraws from a mediation should return any unearned fee to
the parties.
A mediator should not enter into a fee agreement which is contingent upon
the result of the mediation or amount of the settlement.
Co-mediators who share a fee should hold to standards of reasonableness in
determining the allocation of fees.
A mediator should not accept a fee for referral of a matter to another
mediator or to any other person.
IX. Obligations to the Mediation Process:
Mediators have a duty to improve the practice of mediation.
Comments:
Mediators are regarded as knowledgeable in the process of mediation. They
have an obligation to use their knowledge to help educate the public about
mediation; to make mediation accessible to those who would like to use it;
to correct abuses; & to improve their professional skills & abilities.
For information or consultation, call (707) 838-9910
or e-mail:
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